In
2003, Johnson filed a Rule 32, Ala. R. Crim. P., petition
attacking his conviction and death sentence. The circuit
court denied the petition, and Johnson appealed. This Court
remanded the matter twice for additional proceedings--once in
2007 and again in 2013. In 2015, we affirmed the circuit
court's denial of the Rule 32 petition. See Johnson
v. State, [Ms. CR-05-1805, Sept. 28, 2007] So.3d
(Ala.Crim.App.2007). The Alabama Supreme Court denied
certiorari review on November 18, 2016.

Johnson
filed a petition for a writ of certiorari with the United
States Supreme Court. In that petition, Johnson raised one
issue: whether his claim that the State suppressed
information that Victoria Ellison testified against Johnson
out of hope for a reward warranted a remand to this Court for
further consideration in light of Ex parte
Beckworth, 190 So.3d 571 (Ala. 2013). In its response to
Johnson's petition, the State conceded that the case
should be remanded.

On July
28, 2017, the United States Supreme Court granted
Johnson's petition for a writ of certiorari. The
Court's mandate stated:

"On petition for writ of certiorari to the Court of
Criminal Appeals of Alabama. Motion of petitioner for leave
to proceed in forma pauperis and petition for writ
of certiorari granted. Judgment vacated, and case remanded to
the Court of Criminal Appeals of Alabama for further
consideration in light of the position asserted by the [State
of Alabama] in its brief filed on May 10,
2017."[1]

The
evidence against Johnson is set forth in multiple opinions
and will not be recounted in detail here other than to note
that Victoria Ellison was a key witness for the State.
Ellison testified at Johnson's trial and stated that she
had listened in on a three-way telephone call her daughter
had made for Johnson while he was in jail awaiting trial.
Ellison testified that during the call Johnson said, "I
shot the fucker in the head and I saw his head go back and he
fell. ... He shouldn't have got in my business,
messin' up my shit." (Direct Appeal R. 683-84.)

In his third amended Rule 32 petition, Johnson alleged:

"The State also withheld crucial evidence regarding
Violet Ellison's motivation for coming forward with her
story. Although news of the large cash reward offered in the
case was widespread, the State never disclosed to Mr.
Johnson's lawyers that Ms. Ellison had specifically come
forward with her story pursuant to the reward offer, although
it knew this to be the case. Had Mr. Johnson's lawyers
known that Ms. Ellison was specifically motivated by the
reward money, they would have had in their possession
powerful impeachment evidence with which to challenge her
credibility on cross-examination."

The
circuit court denied the claim on the basis that the
information regarding Violet Ellison's motivation to
testify amounted to impeachment evidence. This Court's
opinion of September 28, 2007, upheld the denial of that
claim, citing authority that the claim was "procedurally
barred because [Johnson] failed to satisfy the requirements
of Rule 32.1(e)[, Ala. R. Crim. P., ] and because of the
preclusionary grounds of Rule 32.2(a)(3) and (5), Ala. R.
Crim. P." Johnson, So.3d at ___.

In
2013, the Alabama Supreme Court in Ex parte
Beckworth, supra, recognized that a petitioner
may allege a claim for relief under Rule 32.1(a) based on an
alleged violation of Brady. In such a case, the
Court held, the petitioner does not have to plead facts in
the initial petition to negate the preclusive bars of Rule
32.2(a)(3) and (5), Ala. R. Crim. P. Ex parte
Beckworth, 190 So.3d at 575.

Johnson's
claim that the State knew Ellison was motivated by hope of a
reward and did not disclose that fact to Johnson is a claim
for relief under Rule 32.1(a), Ala. R. Crim. P. Johnson thus
far has not had the opportunity to establish that the
preclusionary grounds do not apply or to prove his ...

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